Wet leases and codeshares: more certainty in Germany, but less in the ECJ, in Regulation 261 treatment of contracting and actual carriers

By Simon Phippard, Matthias Winter

10-2018

In our article on 23 July 2018 on the Advocate-General's opinion in flightright –v- Iberia and the ECJ decision in Wirth –v- Thomson (see here) we noted the different treatment of Regulation 261 claims arising from carriage on airlines other than those issuing the tickets. In flightright, which involved a codeshare arrangement, the Advocate-General opined that the operating carrier (which was not the contracting carrier) should be liable to the passengers when a relatively short delay resulted in a much longer delay at the end of a series of connecting flights. In Wirth, the ECJ decided that, where the contracting carrier subcontracted the carriage to a wet lessor, the entity liable to the passengers was the contracting carrier – to the exclusion of any liability of the wet lessor.

Since then, the Landgericht Berlin has withdrawn its request for a preliminary ruling in flightright, so we will not find out whether the ECJ accepts the Advocate-General's opinion. If it had done so, it would have reached a different conclusion in circumstances where it is not immediately obvious from that opinion why a wet lease is treated differently from a codeshare. On the other hand, readers should note that the Bundesgerichtshof has also come to the same decision as the Advocate-General in the context of a codeshare (Case X ZR 64/16, 24 October 2017) and in that sense German law treats codeshares and wet leases differently. This made the operating carrier liable for the delay compensation but the ticketing carrier was also liable for failure to inform the passengers of the correct identity of the operating carrier. Given the range of views on the subject, and the apparent breadth of the definition of "operating air carrier" in Article 2(b) of Regulation 261, airlines entering into arrangements such as wet leases and codeshares should take care to ensure, among themselves, that responsibility for delay and cancellation claims is clearly allocated among themselves. Leaving it to the Courts to decide may entail a long and uncertain wait.